Arizona: Enemy of Federalism

(Cross-Posted at League of Ordinary Gentlemen.)

So the Federal Department of Justice has sued the State of Arizona over Arizona's immigration law. Once again, I am forced to think critically about something of which I superficially would seem to approve.

Like a lot of immigration liberalization advocates, I must confront the fact that there are people out there who think that the immigration laws are too liberal already. Many of these same people also say, in contradiction to the first contention, that the laws on the books are not being enforced appropriately. Both can't be materially true (if the laws are adequate but not enforced, then they are adequate and not too lax; if the laws are too lax then it hardly matters how well they are enforced) but the sentiment expressed winds up getting to the same place – they contend that too much illegal immigration is going on and it is not a situation we can tolerate for long.

Of course, I've been saying the same thing about the national debt for years and no one's done anything about it. But that's a different story.

The question that the case of United States v. Brewer raises is not one of policy, however, but rather one of Constitutional effect. The Constitution gives to the Federal government the right power to create a uniform rule of immigration and naturalization, which means that this is a subject matter area removed by the words of the Constitution from the states. But the Arizona law does not, itself, attempt to alter the Federal rules about immigration. Arizona has simply said that it wants those rules to be vigorously enforced.

The degree of vigor to which laws are enforced is a policy choice vested in the President. There are too many laws and not enough resources for all rules to be vigorously enforced, so inevitably every President must set priorities. That's part of what you bargain for when you vote for President and it's part of the reason that the Presidency is so powerful in the modern system of government. And since the Reagan Administration and likely since before that, patrolling the Mexican border to prevent illegal immigration* has not been a hugely high priority on the part of any President, regardless of the President's party. Let's not forget, for instance, that it was Reagan's idea† to have an amnesty for illegal aliens already here in the States, and although I rather doubt Reagan would have wanted that to have turned into an incentive for illegal immigration, he did propose a compassionate, integrative approach to the problem.

So Arizonans, whether rightly or wrongly, believe that illegal immigration causes law enforcement problems. What does their law really say? In effect, it comes down to this: if there is a police stop or arrest made on some other cause, and the officer has a "reasonable suspicion" of undocumented status on the part of one of the detainees, the officer can refer that person over to the Federal authorities for them to investigate whether the person has a legal right to be in the U.S. or not.

As I've opined before, the place where I think the law runs in to serious problems is in finding something concrete about a person that the officer can articulate gave rise to a "reasonable suspicion" of undocumented status. It can't be, for instance, that the person has difficulty speaking English. A significant number of citizens have Spanish as their primary language. It can't be that the person is apparently afraid of or nervous about authority figures or seems to find the idea of deportation uncomfortable. If a cop threatened me with deportation, I'd be uncomfortable, too. It might be based around the time, place, and activity of the detainee at the time of contact with the police; but again, the sorts of things one might expect an undocumented alien to be doing are things a native citizen might be doing too – looking for day labor jobs while hanging out in front of Home Depot, for instance. Yes, you'd expect to find a lot of undocumented workers. But citizens might be doing that sort of thing too. And lots of citizens drive without their licenses or other identification on them.

But that is not the theory behind the Federal challenge to the law. That case asks, does this change the unitary Federal scheme for regulating and controlling immigration? To be sure, it enforces that scheme with a degree of vigor that is not found in other states (yet). But substantively it doesn't change the scheme. If the Feds wanted to, they could simply let everyone referred to them by Arizona state law enforcement go without any further inquiry. The only result of that would be that some Arizona cops would abuse their powers and hassle people they wanted to hassle by making an immigration referral for them – but the fact of the matter is, cops already have huge latitude for hassling people they want to hassle anyway. And a state cop who wants to intimidate someone with a threat of deportation will do so anyway because most people susceptible to such a threat are not sophisticated enough to appreciate the subtleties of American Constitutional law in the first place. So while an expansion of state police power in theory, in practice I don't see much going on there.

The issue is ultimately one about prioritizing. And that's what is unique about Arizona's challenge to lawmaking authority. It is not a challenge to Congress' ability to make a law setting a uniform rule for immigration and naturalization. Rather, it is a challenge to the President's setting of priorities and determining that policing against illegal immigration is not as high a priority as, for instance, identifying particular security risks among the population of undocumented aliens or focusing national security dollars on high-tech fighter jets or using drones to kill (admittedly, very morally bad) American citizens engaged in non-combat activities without arrest or trial. It is a challenge to executive lawmaking power, not legislative lawmaking power.

There are those who deny that the President has any lawmaking powers at all. If the term "lawmaking" is defined very narrowly in terms of "legislation" that is probably correct, except to the extent that Congress has delegated that power to the President and agencies reporting to him, thus resulting in the amazingly complex and intricate Code of Federal Regulations. But if "lawmaking" is defined as "creating the enforceable rules that govern our society" then it is quite clearly a power shared by, and intended to be shared by, all three branches of government. Prioritizing among various legislative objectives is one of the things left to the President's discretion and it is, itself, a form of lawmaking. Therefore, Arizona's law challenges the President's ability to decide to focus resources in one area and not in another; it attempts to force the President's hand at allocating resources among various kinds of Federal law enforcement activities.

Prioritizing is a power inherent in the Presidency; it is in a very real sense the most meaningful part of the President's job. Thus, I have to come down on the side of disapproving of the Arizona immigration law as unconstitutional (as opposed to merely ill-advised). The President gets to decide how to allocate Federal law enforcement priorities, not the State of Arizona. Part of our Constitutional scheme is the concept of separation of powers; part of federalism as a form of that separation of powers is the notion that the Federal government is supreme in the subject matter areas delimited as within Federal authority by the Constitution. Were the Arizona law to be valid, then an individual state could set Federal law enforcement priorities contrary to the wishes of the President and the Governor of that state would be more powerful in controlling Federal agents. This cannot be; it is contrary to the Supremacy Clause and contrary to our scheme of Federal-state power distribution.

* This subject has become so politicized that even the terms "illegal immigration" and "undocumented worker" have become politicized to the left and right. For my part, I try to split the difference. A person is described as "undocumented" and they are not "laborers" or "workers" unless they have employment of some kind. But the act of entering the country without documentation is a violation of our laws and therefore "illegal." Hence, "illegal immigration" is an act done by an "undocumented person," and while that person is not inherently "illegal," he has broken a law and that's a fact that needs to be addressed despite whatever compassion might be appropriate for this person.

† A commenter has suggested that this idea originated with Congressional Democrats, not the Reagan White House. I haven't checked to see if he's right. But even if that is true, Reagan still signed off on the idea of amnesty when he could have vetoed it.